Part 23 The Court of Protection
What is the Court of Protection?
The Court of Protection is a superior court of record. It has the same rights, privileges, powers and authority as the High Court. It is able to establish precedent – that means it can establish case law which gives examples of how the law should be put into practice. The Court of Protection has been established to build up expertise in matters relating to capacity.
The Court of Protection follows the statutory Principles of MCA in all its work. (Part 2: The Principles)
Before MCA came into force the Court of Protection dealt only with the financial affairs of people who lacked capacity to manage their own affairs. The new Court also deals with serious decisions about health and welfare.
The Court of Protection is the ultimate decision-maker. If it is not possible to make a decision about someone’s best interests, or if someone wishes to object to a decision made under MCA, the Court of Protection can make a decision. The Court of Protection should be the last resort for any such decisions.
If legal proceedings concerning someone aged 16-17 are being heard in Court, the Court of Protection may refer the decision to the Family Courts, or the Family Courts may refer the decision to the Court of Protection: each decision will be considered individually.
Court of Protection declarations
The Court of Protection can make declarations – a court determination about one particular decision.
The Court can make a declaration about someone’s capacity. This would be relevant if the person wants to challenge a decision about their capacity, or if professionals or family members can’t agree about someone’s capacity to make a serious decision. (Part 6: How to assess capacity)
The Court can make a declaration about the lawfulness of a specific act. This will usually refer to a proposed form of serious medical treatment where there is doubt or disagreement over whether the treatment would be in the person’s best interests. Decisions involving the withdrawal of artificial nutrition and hydration from people in a persistent vegetative state, organ or bone marrow donation by the person who lacks capacity, non-therapeutic sterilisation and other situations where there are ethical dilemmas must be referred to the Court. (Part 16: Serious medical treatment)
The Court can make a decision about where someone should live or what care they should receive if other decision-making processes do not apply. If a proposed action will deprive them of their liberty, this can’t be agreed under s5 MCA. The Deprivation of Liberty Safeguards do not always apply. The Mental Health Act may apply if the person is suffering from a mental disorder, but someone may lack capacity and not be suffering from a mental disorder, or the MHA may not be relevant. In such cases the only legal way to undertake the act is after a declaration made by the Court of Protection. (Part 31: The Mental Capacity Act and the Mental Health Act) (Part 32: Deprivation of Liberty Safeguards)
The Court can make a declaration where there is dispute about a serious decision – for instance about where someone should live. This might apply if all local attempts to resolve a family dispute had failed. (Part 11: Resolving disputes) The Court will need to make a decision under MCA section 16.
Any local authority, health trust, private provider or practitioner should actively seek Court of Protection decisions if there is a dispute. All members of staff could be asked to prepare or give evidence. Make sure you seek legal advice from your legal team.
Anyone can make an application to the Court of Protection and Legal Aid may be available.
The Court can make a declaration if it is suspected that someone who lacks capacity may be at risk of harm or abuse from a named individual. The Court could make a declaration authorising the local authority to stop contact between the named person and the person who lacks capacity.
A declaration from the Court of Protection should always be the last resort after all other means of making a decision have been exhausted. If you think Court of Protection action may be necessary make sure you have legal advice from the relevant legal team and make sure you have advice from the local Safeguarding Adults Team or MCA Lead. (Contact details)
Court Appointed Deputies
The Court of Protection also appoints and monitors the work of deputies. These are people appointed to make decisions about someone’s property and affairs or welfare.
A Property and Affairs Deputy should be appointed when someone has savings or property, or their financial affairs are complex, and they do not have capacity to manage their own affairs and have not appointed a Lasting Power of Attorney or Enduring Power of Attorney to do this for them. (Part 26: People who lack capacity to manage their money)
Anyone can be appointed as Property and Affairs deputy by the Court. This can be a family member or friend, a solicitor or the local authority. Advice about the appointment of a Property and Affairs deputy is available in Devon from the Court of Protection Team, and in Torbay from the Client Proxy finance Officer. (Contact details)
Welfare deputies are rarely appointed. The Court prefers that each individual decision is made using the best interests procedure. If court action is necessary the preferred route is to make one decision, rather than appoint a deputy. (Part 8: Best interests decisions)
If any statutory agency receives a referral requesting the appointment of a Welfare Deputy, this matter should be passed to the Safeguarding Adults Team or the MCA Lead.
A deputy is appointed by the Court of Protection after a court hearing. It is always necessary to have a medical decision concerning someone’s capacity if a deputy is to be appointed.
The Court of Protection and Lasting Powers of Attorney
The Court of Protection is ultimately responsible for the supervision of LPAs and EPAs through the Office of the Public Guardian. EPAs and LPAs must be registered with the Office of the Public Guardian to be valid.
The Court can give directions to an attorney. The Court can cancel the appointment of an attorney if there is evidence that the attorney is not acting in the best interests of the person. The Court might decide then to appoint a deputy to take over the role. (Part 19: Lasting Powers of Attorney)